Direct Line Insurance plc v. Forsyte Corporation
Claim Number: FA0911001295733
Complainant is Direct Line Insurance plc (“Complainant”), represented by James
A. Thomas, of Troutman Sanders LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <directlime.com>, registered with Adoptadomain.com.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 20, 2009; the National Arbitration Forum received a hard copy of the Complaint on November 23, 2009.
On November 24, 2009, Adoptadomain.com confirmed by e-mail to the National Arbitration Forum that the <directlime.com> domain name is registered with Adoptadomain.com and that Respondent is the current registrant of the name. Adoptadomain.com has verified that Respondent is bound by the Adoptadomain.com registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On December 7, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 28, 2009 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@directlime.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 4, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <directlime.com> domain name is confusingly similar to Complainant’s DIRECT LINE mark.
2. Respondent does not have any rights or legitimate interests in the <directlime.com> domain name.
3. Respondent registered and used the <directlime.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Direct Line
Insurance plc, holds numerous trademark registrations with the United Kingdom
Intellectual Property Office (“UKIPO”) for the DIRECT LINE mark (e.g., Reg. No. 1,392,344 issued
September 6, 1991) in connection with a broad range of financial and insurance
products and services including car insurance, home insurance, loans and
mortgages.
Respondent, Forsyte Corporation, registered the disputed domain name on February 8, 2006. The disputed domain name resolves to a website displaying various pay-per-click commerical links including links to Complainant’s competitors.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
Complainant asserts rights in its DIRECT LINE mark through
its holding of numerous trademark registrations for the DIRECT LINE mark with
the UKIPO (e.g., Reg. No. 1,392,344 issued
September 6, 1991). The Panel finds that
Complainant has established rights in the DIRECT LINE mark under Policy ¶
4(a)(i) through its registration with the UKIPO. See
The Royal Bank of Scot. Group plc v. TRB, FA 622345 (Nat. Arb. Forum Feb.
22, 2006) (“The Panel accepts Complainant’s registration of the THE ROYAL BANK
OF SCOTLAND mark with the United Kingdom Patent Office as evidence of
Complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i).”); see also Renaissance Hotel Holdings, Inc. v.
Renaissance
Complainant argues that
Respondent’s <directlime.com> domain name is confusingly similar to Complainant’s DIRECT LINE mark
pursuant to Policy ¶ 4(a)(i).
Respondent’s disputed domain name is confusingly similar to
Complainant’s DIRECT LINE mark because Respondent’s domain name replaces the
letter “n” in Complainant’s mark with the letter “m,” a letter adjacent on the
QWERTY keyboard. The disputed domain
name also deletes the space between the
words in Complainant’s mark, and adds a generic top-level domain name (“gTLD”)
“.com.” The Panel finds that the
misspelling of Complainant’s DIRECT LINE mark creates a term does not
distinguish the disputed domain name from Complainant’s DIRECT LINE mark
resulting in confusing similarity for the purposes of Policy ¶ 4(a)(i). See
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove it has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). Based on the arguments made in the Complaint, the Panel finds that Complainant has established a prima facie case in support of its contentions and Respondent has failed to submit a Response to these proceedings. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must first make a prima facie case that [the] respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (finding that if the complainant satisfies its prima facie burden, “then the burden shifts to the respondent to show that it does have rights or legitimate interest in the subject domain names.”). Nevertheless, the Panel will examine the record to determine if Respondent has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c).
The WHOIS information lists the registrant as “Forsyte Corporation.” Complainant has not licensed or otherwise authorized Respondent to use the DIRECT LINE mark, or any variation thereof. Without evidence to the contrary, the Panel finds that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
Respondent’s disputed domain name was registered on February 8, 2006. The disputed domain name resolves to a website displaying various commerical links including links to Complainant’s competitors, presumably to generate pay-per-click fees. The Panel finds that Respondent’s use is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)); see also Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees).
Complainant alleges that Respondent is using the confusingly similar disputed domain name to capitalize on a common typographical error by substituting a letter in Complainant’s mark with a letter adjacent on the QWERTY keyboard. The Panel finds typosquatting is itself evidence that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). See IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum Sept. 19, 2003) (finding that the respondent lacked rights and legitimate interests in the disputed domain names because it “engaged in the practice of typosquatting by taking advantage of Internet users who attempt to access Complainant's <indymac.com> website but mistakenly misspell Complainant's mark by typing the letter ‘x’ instead of the letter ‘c’”); see also LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14, 2003) (finding that the <ltdcommadities.com>, <ltdcommmodities.com>, and <ltdcommodaties.com> domain names were intentional misspellings of Complainant's LTD COMMODITIES mark and this “‘typosquatting’ is evidence that Respondent lacks rights or legitimate interests in the disputed domain names”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that Respondent’s registration and use of
the disputed domain name to link Internet users to various commerical links including links to Complainant’s competitors
constitutes a disruption of Complainant’s business and constitutes bad faith
registration and use pursuant to Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v.
Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the
use of a confusingly similar domain name to attract Internet users to a
directory website containing commercial links to the websites of a
complainant’s competitors represents bad faith registration and use under
Policy ¶ 4(b)(iii)); see also Persohn v.
Lim, FA 874447 (Nat. Arb. Forum Feb.
19, 2007) (finding bad faith registration and use pursuant to Policy ¶
4(b)(iii) where a respondent used the disputed domain name to operate a
commercial search engine with links to the complainant’s competitors).
The Panel finds that
Respondent is using the disputed domain name to display links to competing
websites attempting to intentionally attract Internet users and profit from the
receipt of pay-per-click fees by creating a strong likelihood of confusion with
Complainant’s DIRECT LINE mark. The
Panel finds this is evidence of bad faith registration and use pursuant to
Policy ¶ 4(b)(iv). See
As established previously, Respondent has engaged in the practice of typosquatting by intentionally misspelling Complainant’s DIRECT LINE mark. The Panel finds typosquatting is itself evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)); see also Bank of Am. Corp. v. Tak Ume domains for sale, FA 154528 (Nat. Arb. Forum May 19, 2003) (“Respondent’s registration and use of the disputed domain name demonstrates a practice commonly referred to as ‘typosquatting.’ This practice diverts Internet users who misspell Complainant’s mark to a website apparently owned by Respondent for Respondent’s commercial gain. ‘Typosquatting’ has been recognized as evidencing bad faith registration and use under Policy ¶ 4(b)(iv).”).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <directlime.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: January 15, 2010
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